United States v. McCray: Explicit Factual Findings and Nexus Requirements for Attempted First-Degree Murder Cross-References under U.S.S.G. § 2K2.1(c)(1)

United States v. McCray: Explicit Factual Findings and Nexus Requirements for Attempted First-Degree Murder Cross-References under U.S.S.G. § 2K2.1(c)(1)

I. Introduction

In United States v. Antonio McCray, No. 24-12125 (11th Cir. Nov. 20, 2025) (per curiam) (unpublished), the Eleventh Circuit vacated a 180‑month sentence imposed on a felon-in-possession defendant because the district court applied the attempted first-degree murder cross-reference under the Sentencing Guidelines without making the specific factual findings that the law requires.

The case lies at the intersection of firearms sentencing, Guidelines cross-references, and the law of attempt. It clarifies that:

  • Mere “planning” of a shooting is not enough to support an attempted first-degree murder cross-reference under U.S.S.G. § 2K2.1(c)(1) and § 2A2.1(a)(1); and
  • The sentencing court must make explicit, reviewable findings—by a preponderance of the evidence—about:
    • The defendant’s use, possession, or transfer of the specific firearm “in connection with” the attempted killing; and
    • The elements of attempted first-degree murder, including intent to kill, a substantial step toward that killing, and (for first-degree) willful, deliberate, malicious, and premeditated conduct.

The opinion builds on prior Eleventh Circuit authority—especially United States v. Mock, 523 F.3d 1299 (11th Cir. 2008), and United States v. Cenephat, 115 F.4th 1359 (11th Cir. 2024)—and fits within recent circuit law on the use of Guideline commentary after United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc), and United States v. Jews, 74 F.4th 1325 (11th Cir. 2023).

II. Background and Procedural History

Antonio McCray, also known as “Kutta,” pleaded guilty in the Middle District of Florida to one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). His conviction concerned a 9mm Springfield Hellcat pistol.

Under the standard felon-in-possession Guideline, U.S.S.G. § 2K2.1, McCray’s advisory range would have been 27–33 months. Instead, the district court applied the cross-reference in § 2K2.1(c)(1), which directs courts to sentence a defendant as though he committed another, more serious offense if he “used or possessed” the firearm “in connection with” that other offense, or possessed/transferred it with the knowledge or intent that it would be so used.

By invoking that cross-reference and ultimately applying the attempted first-degree murder Guideline, § 2A2.1(a)(1), the court raised McCray’s base offense level dramatically, producing an advisory range of 151–188 months. The district court imposed a 180‑month sentence—the statutory maximum under the current penalty provision for § 922(g)(1).

McCray appealed, arguing that:

  • The sentence was procedurally unreasonable because the attempted first-degree murder cross-reference was wrongly applied, among other alleged errors; and
  • The sentence was substantively unreasonable given the record and the statutory sentencing factors in 18 U.S.C. § 3553(a).

The Eleventh Circuit focused on the threshold issue: whether the record contained the necessary factual findings to support the attempted first-degree murder cross-reference. Concluding that it did not, the court vacated and remanded for additional findings, without reaching McCray’s remaining arguments.

III. Summary of the Eleventh Circuit’s Decision

The Eleventh Circuit held that:

  1. The attempted first-degree murder cross-reference under U.S.S.G. § 2K2.1(c)(1), incorporating § 2X1.1 and § 2A2.1, requires specific, element-by-element findings:
    • That the defendant used or possessed the firearm “in connection with” an attempted first-degree murder, or possessed/transferred it with knowledge or intent that it would be so used; and
    • That the facts satisfy attempted first-degree murder under 18 U.S.C. § 1111 (intent to kill, substantial step, and first-degree elements of willful, deliberate, malicious, and premeditated killing).
  2. The district court’s approach—treating it as sufficient to find that McCray “planned” a shooting and was “involved”—did not satisfy those requirements. That finding:
    • Omitted the required nexus between McCray’s possession or use of the specific Springfield Hellcat and the attempted murder; and
    • Omitted the “substantial step” requirement for attempt.
  3. Because the district court did not make clear, explicit factual findings on those elements, the appellate court could not conduct “meaningful appellate review.” Under Mock, this required vacatur and remand for the district court to:
    • Reexamine the applicability of the attempted first-degree murder cross-reference; and
    • Make explicit findings under the correct legal standard, based on a preponderance of reliable evidence.

The court therefore vacated the sentence and remanded for further proceedings, leaving open whether the cross-reference can properly be applied on a more developed and clearly articulated factual record.

IV. Legal Framework

A. The Baseline Offense: 18 U.S.C. § 922(g)(1) and U.S.S.G. § 2K2.1

McCray was convicted under 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms. The applicable Guideline is U.S.S.G. § 2K2.1, which sets base offense levels depending on:

  • The defendant’s criminal history (e.g., prior crimes of violence or controlled substance offenses);
  • The type of firearm; and
  • Other aggravating factors (e.g., number of firearms, possession in connection with another felony, obliterated serial numbers).

Absent the cross-reference, McCray’s offense level corresponded to a modest range of 27–33 months. The central dispute is whether § 2K2.1(c)(1) appropriately transformed that into an attempted murder sentence.

B. The Cross-Reference: U.S.S.G. § 2K2.1(c)(1)

Section 2K2.1(c)(1)(A) states (in relevant part) that if:

“[T]he defendant used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition cited in the offense of conviction with knowledge or intent that it would be used or possessed in connection with another offense,”

then the court must apply U.S.S.G. § 2X1.1 in respect to that other offense, if this yields a higher offense level than the standard § 2K2.1 calculation.

Two key elements are embedded in this cross-reference:

  1. Use/possession nexus: The defendant must have used, possessed, or transferred the cited firearm “in connection with” the commission or attempted commission of another offense, or with knowledge/intent that it would be used in that way.
  2. Identification of “another offense”: The other offense must be identified and its elements met by a preponderance of the evidence.

In McCray’s case, the “other offense” identified was attempted first-degree murder. That triggers § 2X1.1 and then § 2A2.1.

C. Attempted Murder Guideline: U.S.S.G. §§ 2X1.1 and 2A2.1

Section 2X1.1 provides the general rules for attempt, solicitation, and conspiracy. Under § 2X1.1(c)(1):

“When an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section.”

Attempted murder is expressly covered by § 2A2.1, “Assault With Intent to Commit Murder; Attempted Murder.” Section 2A2.1(a)(1) sets:

A base offense level of 33 “if the object of the offense would have constituted first degree murder.”

The commentary to § 2A2.1 defines “first degree murder” by reference to 18 U.S.C. § 1111. Although, after Dupree, courts may not always treat commentary as controlling, the panel here notes that both parties relied on the commentary and no one disputed its interpretation, so it looked to the commentary consistently with Jews.

D. Statutory Definition: 18 U.S.C. § 1111 (Murder and First-Degree Murder)

18 U.S.C. § 1111(a) provides, in part:

  • “Murder” is “the unlawful killing of a human being with malice aforethought.”
  • First-degree murder includes “any kind of willful, deliberate, malicious, and premeditated killing.”

The Eleventh Circuit, citing Cenephat and Mock, recapitulates that:

  • Attempted murder occurs when a person:
    1. Intends to kill someone; and
    2. Takes a substantial step toward that goal.
  • Attempted first-degree murder requires that the intended killing, if completed, would be:
    • Willful, deliberate, malicious, and premeditated.

Thus, for § 2A2.1(a)(1) to apply, the sentencing court must be able to find—by a preponderance of reliable evidence—that:

  1. The defendant (or someone he knowingly aided/used as an agent through transfer of the gun) intended to kill;
  2. The defendant (or that person) took a substantial step toward completing the killing; and
  3. The intended killing would have been a willful, deliberate, malicious, and premeditated killing within the meaning of § 1111.

E. Standard of Proof and Appellate Review

The panel reiterates standard Eleventh Circuit sentencing principles (citing Cenephat):

  • Factual findings at sentencing are reviewed for clear error.
  • Interpretation of the Guidelines is reviewed de novo.
  • When the defendant objects to the factual basis for an enhancement (or cross-reference), the Government bears the burden of proof.
  • The Government must establish a sentencing enhancement by a preponderance of reliable evidence.

Additionally, as Mock emphasizes and McCray reiterates, appellate courts require explicit factual findings on the disputed enhancement elements to perform “meaningful appellate review.” Ambiguous or conclusory rulings—such as “the government has met its burden” without specifying which facts satisfy which elements—can necessitate vacatur and remand.

V. Precedents and Authorities Cited

A. United States v. Cenephat, 115 F.4th 1359 (11th Cir. 2024)

The panel cites Cenephat for multiple propositions:

  • Standard of review and burden: Sentencing factfinding is reviewed for clear error; Guideline interpretation de novo. When the defendant challenges the factual basis for an enhancement, the government must prove those facts by a preponderance of reliable evidence.
  • Definition of attempted murder: Attempted murder requires (1) intent to kill, and (2) completion of a substantial step toward that goal.
  • Link to § 1111: First-degree murder under § 1111(a) involves a “willful, deliberate, malicious, and premeditated killing.” Attempted first-degree murder carries that same mental-state requirement for the intended killing.

In McCray, the court uses Cenephat as the primary modern articulation of the elements of attempted murder in the Guidelines context, ensuring that any application of § 2A2.1(a)(1) is tethered to the statutory definition of first-degree murder.

B. United States v. Mock, 523 F.3d 1299 (11th Cir. 2008)

Mock is the key procedural precedent driving the result in McCray. In Mock:

  • The defendant was convicted of arson.
  • The arson Guideline contained a cross-reference that could apply if the arson was “intended to cause death or serious bodily injury.”
  • The district court applied the attempted first-degree murder Guideline (§ 2A2.1(a)(1)) based on this cross-reference but did not explicitly find that Mock intended to cause death or serious bodily injury.

The Eleventh Circuit vacated because:

  • The district court’s generic statement that § 2A2.1 was the “more appropriate” guideline did not answer the specific factual question that triggered the cross-reference—namely, intent to cause death or serious bodily injury.
  • Without a clear finding on that specific threshold issue, the appellate court could not conduct “meaningful appellate review.”

McCray applies the same reasoning: although the district court here cited various pieces of evidence (text messages, ballistics, gang rivalry, etc.) and asserted that the government “met its burden,” it did not make the necessary for the attempted first-degree murder cross-reference:

  • No clear determination that McCray possessed or used the Springfield Hellcat “in connection with” the attempted killing (rather than merely being involved in planning a shooting generically).
  • No clear determination that McCray—or someone he armed—intended to kill and took a substantial step toward that killing.

As in Mock, these omissions required vacatur and remand.

C. United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc), and United States v. Jews, 74 F.4th 1325 (11th Cir. 2023)

Dupree reshaped Eleventh Circuit law on deference to the Sentencing Commission’s commentary. It held that courts may not defer to Guideline commentary when the text of the Guideline itself is unambiguous. Commentary can still be consulted when:

  • The Guideline is genuinely ambiguous; or
  • The parties rely on the commentary, and no one disputes its interpretation, so the commentary functions as a mutually accepted interpretive aid rather than a binding rule.

Jews applied Dupree and clarified that where, as here, both parties rely on commentary and no party contests its interpretation, the court may look to the commentary without resolving any ambiguity question.

In McCray, the panel notes this framework in a footnote and then proceeds to use the commentary to § 2A2.1, which points to 18 U.S.C. § 1111’s definition of first-degree murder. This is a modest but important illustration of how Dupree/Jews now shape sentencing analysis:

  • The court does not blindly defer to commentary; it situates it within the parties’ arguments and the statutory framework.
  • Because the parties did not challenge the commentary’s linkage of § 2A2.1 to § 1111, the panel accepted that linkage and proceeded accordingly.

VI. Detailed Analysis of the Court’s Reasoning

A. The District Court’s Framing: “Planning” vs. Attempted Murder

Two key statements by the district court drove the Eleventh Circuit’s concern:

  1. The court asked the government: “So what else would you like to present to show that the defendant at least planned this with fellow gang members? I don't think he necessarily had to be the person pulling the trigger, obviously, but just that he planned it.”
  2. Later, it ruled: “I'm going to have to sustain the government's objection. I think they have met their burden of involvement. You've got the text messages, bullets, guns, and black jackets, the timing of the text messages, the rival gang, the cover-up. The ballistic information was very critical that was testified to. I think when you put all that together, the government has met its relatively low burden … So I will sustain the government's objection. And I think the attempted murder cross-reference from Mr. McCray's conduct should have been included in there.”

The panel viewed this as an indication that the district court believed:

  • It did not need to find that McCray personally pulled the trigger;
  • It was enough to show that McCray “planned” the shooting with others; and
  • This planning alone sufficed to justify the attempted murder cross-reference.

The appellate court corrects this understanding: planning, by itself, is not enough for § 2A2.1(a)(1), particularly when:

  • The defendant is being sentenced under § 2K2.1(c)(1), which specifically requires a nexus between the firearm of conviction and the attempted offense; and
  • The law of attempt requires a substantial step toward the commission of the intended crime, not just agreement or planning.

B. The Missing Nexus Finding under § 2K2.1(c)(1)

Section 2K2.1(c)(1) requires that McCray:

  • Used or possessed the Springfield Hellcat in connection with the commission or attempted commission of attempted first-degree murder; or
  • Possessed or transferred the Springfield Hellcat with knowledge or intent that it would be used or possessed in connection with attempted first-degree murder.

The panel observes:

  • The district court “never found as a matter of fact that McCray possessed the Springfield Hellcat on the dates in question.”
  • Nor did it find “what substantial step McCray took to commit attempted first-degree murder, such as either firing the gun, or giving it to someone else to fire.”
  • Although the court referenced evidence (texts, bullets, guns, black jackets, rival gang, cover-up, ballistics), it did not articulate what that evidence proved regarding the specific nexus between McCray’s possession/use/transfer of the Hellcat and the attempted killing.

The Eleventh Circuit emphasizes that:

“It is not clear exactly what facts the district court relied on in imposing the cross-reference to the attempted first-degree murder guideline. … The district court did not make factual findings regarding the required nexus between McCray's possession of the Springfield Hellcat pistol and the commission of attempted first-degree murder.”

This ambiguity is fatal to the application of § 2K2.1(c)(1) because:

  • The cross-reference is firearm-specific; it applies only if the firearm cited in the offense of conviction is used/possessed/transferred “in connection with” the other offense.
  • A generic finding that McCray was “involved” in a gang-related shooting—even if supported by evidence—is not enough unless tied to his use or transfer of the specific gun underlying his § 922(g) conviction.

C. The Missing “Substantial Step” Finding under the Law of Attempt

Beyond the firearm nexus, the panel underscores that the law of attempt, as applied to murder, requires:

  1. Intent to kill; and
  2. A substantial step toward that killing.

The district court’s focus on “planning” does not necessarily equate to a substantial step. Planning may be:

  • Evidence of intent (e.g., text messages coordinating a hit), and
  • Part of the narrative that supports a finding that other concrete steps occurred (e.g., acquiring the gun, traveling to the target, firing into a vehicle or house).

But the panel makes clear that planning alone, unconnected to a concrete action that substantially advances the killing, “would be legally insufficient” to apply § 2A2.1(a)(1):

“If, on the other hand, the district court found only that McCray ‘planned’ a shooting, unconnected to his possession of the Springfield Hellcat, this would be legally insufficient to apply the U.S.S.G. § 2A2.1(a)(1) base offense level, and thus caused an incorrect Guidelines calculation.”

The opinion even provides a roadmap for a legally sufficient finding:

“It would have been sufficient if the district court had found by a preponderance of the evidence that McCray possessed the Springfield Hellcat pistol in connection with attempted first-degree murder, such that McCray intended to and took a substantial step toward a willful, deliberate, malicious, and premeditated killing.”

In other words, the district court must articulate:

  • What exactly McCray did (or caused others to do via providing the firearm) that qualifies as a substantial step (e.g., firing shots, handing the gun over as part of an agreed attack); and
  • How that conduct, combined with the evidence of planning, proves an intent to carry out a premeditated killing.

D. The Requirement of Explicit Findings and “Meaningful Appellate Review”

Drawing directly from Mock, the Eleventh Circuit stresses that it cannot assume the district court applied the correct legal standard merely because the result would have been permissible on the evidence:

“Like Mock, ‘[a]lthough the district court may have based its decision to depart from the [felon in possession] guideline and apply § 2A2.1 on the [proper] finding[s], we cannot be sure that it did.’”

The panel does not decide whether the evidence was sufficient as a matter of law to support the cross-reference. Instead, it focuses on the lack of clearly articulated findings:

  • The district court vaguely said the government met its “relatively low burden” of showing McCray’s “involvement.”
  • It pointed to categories of evidence without specifying what inferences it drew from that evidence regarding:
    • Use/possession/transfer of the Hellcat “in connection with” the attempted killing; and
    • Intent to kill and substantial step.

Absent those specifics, the appellate court would have to speculate about the basis for the cross-reference. That is precisely what Mock forbids and why remand was required:

“The district court did not make explicit factual findings explaining why it found the attempted first-degree murder cross-reference applied, and therefore we are unable to determine if the district court applied the cross-reference based on legally sufficient factual findings using the preponderance of the evidence standard.”

VII. Clarifying Complex Concepts and Terminology

A. Sentencing “Cross-Reference” under the Guidelines

A cross-reference in the Guidelines is a provision that instructs a court to abandon the normal Guideline for an offense and instead sentence the defendant as if he had committed a different offense, when certain conditions are met.

In § 2K2.1(c)(1), the idea is:

  • If a firearm offense (e.g., felon in possession) is really part of a more serious crime (e.g., attempted murder),
  • And if the firearm of conviction is tied to that more serious crime,
  • Then the defendant should be sentenced based on the more serious conduct, not merely the firearm possession.

Because cross-references can radically increase the guideline range—as in McCray’s case (27–33 months up to 151–188 months)—courts are careful to insist that the factual predicates be clearly established and articulated.

B. “In Connection With”

The phrase “in connection with” generally requires a nexus between the firearm and the other offense. In this context, examples might include:

  • Using the firearm to shoot at the victim;
  • Providing the firearm to a co-conspirator for the purpose of committing the shooting; or
  • Carrying the firearm to the scene of the attempted killing as an integral part of the attempt.

Simply possessing a gun and separately being involved in criminal planning is not enough; the firearm must have some evident role in furthering or facilitating the attempted murder.

C. “Malice Aforethought” and “Willful, Deliberate, Malicious, and Premeditated”

Under § 1111(a), murder is the unlawful killing of a human being with malice aforethought. While the statute does not define that phrase in detail, it encompasses an intent to kill or cause serious bodily injury or a depraved-heart disregard of human life.

First-degree murder, however, is narrower. It includes “any kind of willful, deliberate, malicious, and premeditated killing.” In practical terms:

  • Willful: The killing is intentional, not accidental.
  • Deliberate: The decision to kill is made after some reflection, however brief, and is not purely impulsive.
  • Malicious: The act is accompanied by an evil or wrongful intent; it is not a justified or excusable killing.
  • Premeditated: The killer formed the design to kill before acting, again possibly in a short time frame, but with some degree of planning or contemplation.

Attempted first-degree murder imports these elements into the intended killing. The defendant’s mental state must match what would be required for first-degree if the killing had been completed.

D. “Attempt” and “Substantial Step”

In federal criminal law, an attempt generally requires:

  1. A specific intent to commit the underlying crime; and
  2. Conduct that constitutes a substantial step toward the commission of that crime.

A “substantial step” is more than mere preparation or planning; it must strongly corroborate the firmness of the defendant’s criminal intent. Examples in a murder context may include:

  • Luring the victim to a location and lying in wait with a loaded gun;
  • Firing shots at the intended victim but missing; or
  • Providing a gun to an accomplice at the scene of a planned shooting, along with instructions to shoot.

In McCray, the Eleventh Circuit’s concern is that the district court never specified what conduct by McCray (or by someone he armed) constituted the substantial step toward a premeditated killing.

E. “Preponderance of Reliable Evidence”

At sentencing, most factual determinations—including those supporting enhancements and cross-references—are made by judges under a preponderance of the evidence standard. This means:

  • The fact is more likely than not true;
  • The judge must consider the reliability of the evidence (e.g., consistency, corroboration, credibility); and
  • Even though this is a lower standard than “beyond a reasonable doubt,” it still demands reasoned, evidence-based findings.

Here, the district court referred to the government’s “relatively low burden” but did not articulate how the evidence met each required element. McCray clarifies that invoking a low burden does not excuse the omission of specific findings.

F. Unpublished / “Not for Publication” Opinions

The opinion is marked “NOT FOR PUBLICATION.” In the Eleventh Circuit, unpublished opinions typically:

  • Are not binding precedent under circuit rules; but
  • May be cited as persuasive authority, particularly on similar factual or procedural issues.

While McCray therefore does not formally establish binding precedent, it is nonetheless a valuable indicator of how the Eleventh Circuit will scrutinize sentencing cross-references involving serious violent conduct and unclear factual findings.

VIII. Practical and Doctrinal Impact

A. Impact on District Court Sentencing Practice

McCray reinforces a clear message to sentencing judges: when applying a dramatic cross-reference like attempted first-degree murder, generic findings will not suffice. On remand and in future cases, district courts should:

  • Explicitly identify:
    • Which firearm is at issue (here, the Springfield Hellcat);
    • How and when the defendant used, possessed, or transferred it “in connection with” the attempted killing; and
    • What specific conduct constituted the substantial step toward the premeditated killing.
  • Link each piece of evidence (text messages, ballistics, gang context, etc.) to specific elements of the cross-reference:
    • Intent to kill;
    • Substantial step;
    • Premeditation; and
    • The nexus between gun and crime.
  • Articulate their reasoning on the record to permit full appellate review.

This may lengthen sentencing explanations in complex cases, but it significantly reduces the risk of reversible error.

B. Impact on Prosecution Strategy

For prosecutors seeking severe cross-reference enhancements, McCray highlights the need to:

  • Present evidence and argument in a structured way, element by element:
    • Identify the specific “other offense” (here, attempted first-degree murder);
    • Explain how each element of that offense is met; and
    • Show precisely how the firearm of conviction was used in connection with that offense.
  • Invite the court to adopt proposed findings, perhaps through:
    • Sentencing memoranda with proposed findings of fact and conclusions of law; and
    • Oral arguments that walk the court through each element.
  • Anticipate appellate scrutiny under Mock and McCray, and build a record accordingly.

Where the evidence is primarily circumstantial (as in many gang or conspiracy cases), it is particularly important to connect the dots for the court, rather than relying on the general notion that “this looks like attempted murder.”

C. Impact on Defense Counsel

For defense attorneys, McCray is a roadmap for objecting to, and potentially defeating, severe cross-reference enhancements:

  • Insist that the government prove:
    • Use/possession/transfer of the specific firearm “in connection with” the other offense; and
    • Each element of the other offense (here, attempted first-degree murder), including substantial step and premeditation.
  • Object not just to the conclusion but to the lack of specific findings:
    • “The record contains no clear finding that Mr. X possessed this particular gun during the incident.”
    • “The court has not identified what it considers to be the substantial step toward killing.”
  • Create a record by:
    • Pressing the court at sentencing to clarify which facts it is finding and which elements they satisfy;
    • Requesting explicit rulings on disputed issues of fact and law; and
    • Highlighting the potential for reversible error under Mock and McCray if findings are vague.

This strategic focus can either prevent the cross-reference from being applied or position the case for a successful appeal if the district court fails to make adequate findings.

D. Broader Doctrinal Significance

Although unpublished, McCray has broader significance for:

  • Sentencing enhancements based on uncharged conduct: The case reinforces that severe enhancements tied to uncharged or acquitted conduct (e.g., attempted murder, kidnapping) require careful factual articulation, even under the preponderance standard.
  • Firearms and gang cases: It underscores that courts cannot simply conflate general gang involvement and firearm possession with specific high-level offenses without clear nexus findings.
  • Post-Dupree use of commentary: The panel’s modest reliance on the § 2A2.1 commentary—carefully framed and uncontested—illustrates the more cautious, text-focused approach to commentary in the Eleventh Circuit post-Dupree.

Cumulatively, decisions like Mock, Cenephat, and now McCray push district courts toward more disciplined, transparent sentencing reasoning, particularly when the difference between Guideline calculations is as stark as 27–33 months versus 151–188 months.

IX. Conclusion

United States v. McCray is a significant clarification of the requirements for applying the attempted first-degree murder cross-reference under U.S.S.G. § 2K2.1(c)(1). It establishes, in practical terms, that:

  • It is not enough for a district court to find that a defendant “planned” a shooting or was “involved” with violent gang activity; and
  • To apply § 2A2.1(a)(1), the court must:
    • Identify and find, by a preponderance of reliable evidence, that the defendant used, possessed, or transferred the firearm of conviction “in connection with” an attempted killing;
    • Find that the defendant (or someone he armed) intended to kill;
    • Find that a substantial step toward that willful, deliberate, malicious, and premeditated killing occurred; and
    • Articulate these findings explicitly so as to permit meaningful appellate review.

By vacating and remanding McCray’s 180‑month sentence, the Eleventh Circuit signals that the extraordinary leverage of cross-references—converting a felon-in-possession case into a de facto attempted-murder sentence—must be matched by equally careful judicial factfinding. Even under a “relatively low” preponderance standard, the elements matter; the firearm nexus matters; and the record must reflect precisely how the government met its burden.

While unpublished, McCray will likely be cited by litigants and courts alike as persuasive authority on the need for explicit, structured findings whenever a sentencing court ventures beyond the charged offense to impose punishment as if a far more serious crime—such as attempted first-degree murder—had been proven.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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